Professional and Legal Responsibilities of Law Enforcement and Prosecutors
For law enforcement and prosecutors, the primary focus is to protect the integrity of the investigation and the individuals involved. Law enforcement operates primarily on a right-to-know and need-to-know approach to information sharing. The first question to be asked and answered before sharing information is, “Does this person have the right to know the information I am about to share?” If the answer is “yes,” the next question must be, “Does this person need to know the information I am about to share?” This two-step approach should be used whenever confidential information is shared. Typically, in law enforcement settings, it is required to meet both criteria before information is shared, but in collaborative settings, information may be limited in scope to what is required for effective task force collaboration.
By law, law enforcement are not permitted to disclose a variety of matters (grand jury, tax, wiretaps, etc.) and other matters cannot be disclosed in order to protect case integrity, officer safety, victim safety and privacy, or otherwise protect sensitive means and sources that would lose their effectiveness if targets learn about them. For example, telling people about an upcoming search warrant could hurt actual case operations and lead to the flight of suspects or the destruction of evidence. This is critical in understanding what law enforcement can and cannot share with anyone else involved in the case.
A Right-to-Know and Need-to-Know Example
A common example regards what information needs to be shared between task force members prior to a law enforcement operation in which trafficking victims may be identified, such as an operation against a suspected brothel where foreign national women are being victimized. If the law enforcement partner expects proper support from their victim service provider partners, the law enforcement agency must inform them far enough in advance of the operation to allow them to fully prepare. The information provided should not include the location of the suspected brothel or other law enforcement-sensitive information, because the victim service provider does not have the right to know this information.
The victim service provider does have the need to know certain information, for example, the number of potential victims, gender, age, and the language they speak. In this example, this information, along with the estimated timeframe for the potential victim assistance needs, is the only information that needs to be shared. More importantly, this information should only be shared with those task force members who will provide these immediate services. Other task force partners can be notified after the fact, or on an as-needed basis.
Law enforcement must be honest about what will happen with the information that a victim provides because of the nature of the criminal justice system, but law enforcement can discuss what steps they will take at different stages of the process to protect the privacy of the victim and their family. Often, law enforcement members will do presentations at the larger task force meetings to victim service provider partners to describe law enforcement functions (without going into law enforcement-sensitive or covert matters) in order to help promote understanding.
Victim Service Providers and Other Service Provider Responsibilities
Victim service providers must disclose any and all limits to confidentiality when a victim first accesses those services. A strong case management system and plan should respect the rights of its clients to confidentiality (and explain limitations of that confidentiality) and freedom of choice. Victim service providers often have several staff or external partners that may interface with the victim in the course of their work, and it is important that the victim understands how confidentiality may differ depending on the role of that staff person. For example, some states extend an evidentiary privilege to qualified case managers, and social workers must adhere to the ethical duties required for their certification, while lawyers and medical and mental health professionals have separate confidentiality and privilege protections. It is essential that one victim service provider knows and understands the confidentiality limits of other service provider organizations within the community.
Clients should receive an explanation about confidentiality and privilege, otherwise they may be reluctant to make full disclosure, which is critical to treatment.
Between Task Force Members and Victims
Any task force member with direct contact with victims must clearly and directly communicate with victims what they can and cannot ensure in terms of confidentiality and privacy. Providing this information up front empowers the victim to make informed choices about what they will share. Responding to the victim's questions about confidentiality and privacy, and explaining the reasons behind it, are critical steps in building rapport with the victim for both law enforcement and victim service providers. Empowering the victim to make their own decisions about what kind of information they want to share is an ongoing process. Most importantly, task force members with direct contact with victims must be up front with the victim and not make promises that they cannot guarantee when it comes to confidentiality.
Between Task Force Members
One of the more common misunderstandings among task force members is about the sharing of information. Conflict can arise from misinformation about the legal or professional responsibilities that individual task force members must maintain with regard to confidentiality.
It is important for task force members to recognize that responsibilities and obligations regarding confidentiality depend significantly on the type of organization or government agency the individual is affiliated with and the professional obligations of the individual. Each member, old or new, should have a clear understanding of their confidentiality requirements prior to formally engaging with the task force on direct victim casework. This will not only help bring an understanding of each other’s confidentiality requirements, but will help decide what are the minimum requirements for the group operating as a whole. A good place to begin outlining the scope and required confidentiality is in a formal Memorandum of Understanding. (See Section 3.1 on committees and task force operational protocols.)
The level of disclosure among and between task force members is dependent on the strength of relationships, the necessity of disclosure, and the purpose of disclosure. Routine reminders of respect for confidentiality as a team value are essential, particularly when discussing current cases.
Best Practices for Disclosure Waivers and Releases
For additional information and tools, visit the Resource page for Section 3.2 Information Sharing.